can goods sold to the corporation for distributing them to the consumers be assessed to duty on retail sale price?

Case:- BUTTERFLY GANDHIMATI APPLIANCES LTD Vs CCE,CHENNAIIII

Citation:-2014-TIOL-2466-CESTAT-MAD

Brief facts:-the brief facts of the case of M/s. Butterfly Gandhimati Appliances Ltd. were that they were manufacturers of Mixies and Table Top Wet Grinders falling under Chapter 85094010 of the First Schedule to the Central Excise Tariff Act, 1985. The appellant was registered with Central Excise Department and discharging the duty liability accordingly. The appellant procured orders from the Tamil Nadu Civil Supplies Corporation (TNCSC) for implementing the scheme of free distribution of Mixies and Table Top Wet Grinders to the beneficiaries of the families holding Rice Cards announced by the Govt of Tamil Nadu. The goods were notified under Section 4A of the Central Excise Act and the same were assessed to duty on Retail Sale Price (R.S.P) value under Section 4A of the Central Excise Act. The appellant secured order for supply of 3,00,000 nos. of domestic Electric Food Mixer at the rate of Rs.1165/- + VAT per piece and 8,00,000 nos. of Table Top Wet Grinders @ Rs.3045 per piece inclusive of all taxes unloading charges etc. In pursuance of orders from TNCSC, the appellants had supplied the above goods and paid Excise Duty as per Section 4A after availing abatement of 35% from the RSP in terms of Notification No.49/2008-CE (NT) dt. 24.12.2008 as amended. A show cause notice dt. 18.9.2012 was issued alleging that valuation for payment of excise duty had been adopted under Section 4 of the Central Excise Act on the ground that the goods were supplied to "institutional consumers" and accordingly demanded differential duty. The Commissioner of Central Excise, Chennai-III confirmed the demand of Rs.75,40,848/- and held that Domestic Electric Food Processor and Table Top Wet Grinders were not intended for sale in retail but for free distribution and also held that TNCSC is an "institutional consumer" and also imposed penalty. Aggrieved by the said order, the appellant filed the appeal.
In Appeal No.E /41665/2013, M/s.LLM Appliances Ltd. is manufacturers of Electric Table Fans and Electric Rice Cookers falling under headings 84145190 and 85166000 respectively. They are registered with Central Excise Department. The goods were notified under Section 4A of the Central Excise Act. Accordingly, excise duty was paid on RSP value under Section 4A of the Central Excise Act in terms of Notification No.49/08-CE (NT) dt. 24.12.2008. They had procured orders from TNCSC for supply of 6,00,000 nos. of Electric Table Fan at the rate of Rs.930/- + VAT per piece and also 2,12,227 pieces of Electric Table Fans @ Rs.930/- + VAT per piece inclusive of all taxes, unloading charges for delivery at the destination. Accordingly, they had cleared the goods on payment of appropriate central excise duty on RSP value under Section 4A of the Central Excise Act after availing abatement of 35% from the RSP in terms of aforesaid notification. SCN dt. 26.9.2013 was issued to the appellant demanding differential duty on the ground that the goods were supplied to institutional consumer and the provisions of Section 4A was not applicable for arriving at the assessable value as it was not intended for sale in retail but for free distribution. The Commissioner of Central Excise, Chennai-III confirmed the demand of duty of Rs.1,06,64,326/- along with interest and imposed penalty under Rule 25 of the Central Excise Rules and held that these Electric Table Fans and Rice Cookers cleared to TNCSC under the agreement were to be assessed under Section 4 and not under Section 4A of the Act. Hence the appellant filed the captioned appeal.

Appellant’s contention:-Shri N. Venkatraman, Learned Senior Counsel appearing for both the appellants submitted as under:-
(i) The goods manufactured by the appellants were covered under Section 4A of the Central Excise Act and they were accordingly paying Excise Duty. The goods were covered under "The Legal Metrology (Packaged Commodities) Rules, 2011" (LMR, for short).
(ii) The goods in question were packaged commodity as per the above Act and Rules. The said goods were also notified under Section 4A of the Central Excise Act and appropriate Central Excise Duty has been paid on the RSP basis after availing the abatement as per notification No.49/08. There was no dispute on the fact that the goods are covered under L.M.R and assessable under Section 4A of the Central excise Act.

(iii) To implement the scheme of free distribution of the aforesaid items to the women beneficiaries belonging to families holding family cards eligible for drawing rice ,M/s.TNCSC, a Govt of Tamil Nadu undertaking, is authorized to float tender and procure the goods as per the rate contract. The appellants secured the contract and supplied the goods after assessing the duty under Section 4A of the Act and the same were supplied to Govt of Tamil Nadu through TNCSC for free distribution to women beneficiaries as per the scheme. The goods were supplied to weaker and poorer sections of people of Tamil Nadu who were the ultimate Beneficiaries.
(iv) TNCSC was not an institutional consumer. As per Rule 3 of L.M.R "institutional consumer" means "the institutional consumer like transportation, Airways, Railways, Hotels, Hospitals or any other service institutions who buy packaged commodities directly from the manufacturer for use by that institution".
(v) TNSCS is a Govt of Tamil Nadu undertaking distinct from "institutional consumer" as the goods were not consumed by TNCSC or the TN Govt but supplied to eligible beneficiaries who were the citizens of the country, the ultimate consumers.
(vi) Commissioner's finding that TNCSC was a service institution is erroneous and TNSCS cannot be considered as "institutional consumer". The appellants had cleared the goods as per LMR Rules, duly packaged and MRP affixed and markings and the goods were sold to TNCSC. There was an element of sale in the transaction between the appellant and TNCSC and Section 4A would be rightly applicable.
(vii) TNCSC in turn supplied the goods to poorer sections was not the relevant criteria to decide the applicability of Section 4A. Once the goods were covered under L.M.R as "packaged commodity" and their RSP was to be declared on the package and sold Section 4A is rightly applicable and cannot be assessed under Section 4 of the Central Excise Act. They relied upon the following decisions : -
(1) PG Electroplast Ltd. Vs CCE 2014-TIOL-861-CESTAT-DEL
(2) Jayanti Food Processing Private Ltd. Vs CCE Rajasthan 2007 (215) ELT 327(SC) = 2007-TIOL-150-SC-CX
(3) CCE Mysore Vs Nestle India Ltd. 2009 (248) ELT 737 (Tri.-Bang.) = 2009-TIOL-1672-CESTAT-BANG
(4) Starlite Components Ltd. Vs CCE Nashik 2012 (286) ELT 43 (Tri.- Mumbai) = 2012-TIOL-1090-CESTAT-MUM

Respondent’s contention:-On the other hand, Ld. AR reiterated the finding of the impugned orders. He submitted that TNCSC is a State Government Undertaking which undertook commercial activity for procurement and distribution of essential commodities on behalf of the Govt of Tamil Nadu.
TNCSC had been awarded a contract for free distribution of impugned goods. The cost of the goods was paid by the State Government and TNCSC got its contract for monetary consideration which was a commercial activity.
The activities of TNCSC were similar to the nature of institutional consumers, like airways, railways, hotels, hospitals as referred to in Rule 3 (b) (i) of LMR 2011. Further, as per Section 2 (h) of Central Excise Act, 1944, read with Section 2(r) of Legal Metrology Act 2009 (LMR, 2009), 'sale' means transfer of property in any weight, measure or other goods by one person to another for cash or for deferred payment for any other valuable consideration. In the present case, there was no sale involved as TNCSC had distributed the goods free of cost.
Definition of "retail sale" referred to in Section 4A meant the "maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer". This explanation does not include free sale as "retail sale".
TNCSC was neither "retail dealer" nor "wholesale dealer" as per the definition of LMR. If the goods were ultimately sold to the retail consumer, the price shall be treated as "retail price". Sale to the intermediary was not a retail sale. The appellant sold the goods in bulk to TNCSC which cannot be considered as 'retail sale'.
They relied on the counter affidavit filed before the Hon'ble Madras High Court in the writ petition filed by P. Jaganathan, one of the tenderer. The decision relied by the appellant in the case of PG Electroplast Ltd. (supra) was not applicable to the facts in the present case, as in this case, in the absence of details of ELCOT, it was different from TNCSC. In that case, the Tribunal had only discussed Section 4 not section 4A. They elied on the following citations : -
(i) Jayanti Food Processing (P) Ltd. Vs CCE Rajasthan 2007 (215) ELT 327 (SC) = 2007-TIOL-150-SC-CX
(ii) Rallis India Ltd. Vs CCE Nagpur 2007 (212) ELT 103 (Tri.-Mumbai) = 2007-TIOL- 324-CESTAT-MUM which has been upheld by the Supreme Court as reported in 2010 (254) ELT A73 (SC)
(iii) Bharti Systel Ltd. Vs CCE Chandigarh 2002 (145) ELT 626 (Tri.-Del.) = 2002- TIOL-48-CESTAT-DEL
(iv) CCE Mysore Vs Nestle India Ltd. 2009 (2480 ELT 737 (Tri.-Bang.) = 2009-TIOL- 1672-CESTAT-BANG
(v) Starlite Components Ltd. Vs CCE Nasik 2012 (286) ELT 43 (Tri.-Mumbai)= 2012-TIOL-1090-CESTAT-MUM

The Ld. Senior Advocate for the appellant had countered the Revenue's submission and submitted that TNCSC was not akin to airways, railways, hotels etc. as the TNCSC did not further use the subject goods for their own purpose. It was submitted that the Tribunal in the case of P.G. Electroplast Ltd. (supra) at para 6 & 7 have dealt with applicability of Section 4A.
Therefore it was not correct to say that the Tribunal had not dealt with Section 4. He further submitted that what was relevant was the condition in which the goods were cleared to TNCSC, as they had sold the goods for consideration and Section 4A was applicable. There was element of "sale" in the transaction between the appellant and TNCSC and Section 4A was applicable as held in the Hon'ble Supreme Court's judgement in the case of Jayanti Food Processing Private Ltd. (supra) at para-29. They were similar to DOT, MTNL, BSNL who purchased in bulk to supply to their customers. He also pointed out that reliance on the affidavit filed before the Hon'ble Madras High Court cannot come to the rescue of the department, where the High Court has dismissed the petition filed by Shri K. Jaganathan and the case was not related to Section 4 or 4A, which was related to tender acceptance. The discharge of Central Excise duty was based on the interpretation of Central Excise Act, 1944. The case is squarely covered by the Tribunal's decision in the case of PG Electroplast Ltd. and Jayanti Food Processing Private Ltd. (supra).

Reasoning of judgment:- aftercarefully considering the oral and written submissions made by both sides and carefully going through the records it was held that M/s. Butterfly Gandhimati Appliances Ltd. and M/s. LLM Appliances Ltd. were manufacturing Mixies, Table Top Wet Grinders falling under heading 85094010 and Electric Fans and Electric Rice Cookers falling under Chapter Heading 84145190 and 85166000 respectively and clearing the goods on payment of appropriate Central Excise duty on Retail Sale Price (R.S.P.) as per Section 4A of the Central Excise Act. The period of dispute in these appeals were September 2011 to September 2013. There was no dispute on the fact that the impugned goods were covered under Section 4A and also listed in the Notification No.49/2008 as amended for availing the abatement. The main dispute is that whether the impugned goods supplied to TNCSC, which were intended for free distribution to the women beneficiaries belonging to families holding family cards eligible for drawal of rice as per the T.N. Government scheme were to be assessed under the provisions of Section 4 or Section 4A of the Central Excise Act, 1944.
The adjudicating authority held that TNCSC is a "service institution" and as per L.M.R sales to institutional consumer are excluded from the declaration of R.S.P and in turn they were not covered under Section 4A. The adjudicating authority also held that since TNCSC had not sold the goods and supplied free of cost as per the government scheme, they were rightly covered under the definition of "institutional consumer". Section 4A of Central Excise Act, 1944 is reproduced as under : -
"SECTION 4A. Valuation of excisable goods with reference to retail sale price.
(1)The Central Government may, by notification in the Official Gazette, specify any goods, in relation to which it is required, under the provisions of the Standards of Weights and Measures Act, 1976 (60 of 1976) or the rules made thereunder or under any other law for the time being in force, to declare on the package thereof the retail sale price of such goods, to which the provisions of sub-section (2) shall apply.

(2) Where the goods specified under sub-section (1) are excisable goods and are chargeable to duty of excise with reference to value, then, notwithstanding anything contained in section 4, such value shall be deemed to be the retail sale price declared on such goods less such amount of abatement, if any, from such retail sale price as the Central Government may allow by notification in the Official Gazette."

It was evident from the above, any excisable goods which were covered under the provisions of Standards of Weights and Measures Act, 1976 or the rules made thereunder were required to declare on the package the retail sale price of the goods. Notification No.49/2009-CE (NT) dt. 24.12.2008 as amended issued under Section 4A of the Central Excise Act specified the list of goods falling under CETA, where the provisions of Section 4A will apply and also specified abatement to each item.

It was pertinent to note that the L.M. (Package Commodities) Rules, 2011 and Chapter II of the said rules provide for applicability of RSP to packages intended for retail sale. Rule (3) of L.M.R excludes certain commodities where the provisions of RSP shall not apply. The relevant portion of rule is reproduced as under: -
"3. Applicability of the Chapter
The provisions of this Chapter shall not apply to,
(a) packages of commodities containing quantity of more than 25 kg or 25 litres excluding cement and fertilizer sold in bags upto 50 kg; and
(b) Packaged commodities meant for industrial consumers or institutional consumers.
Explanation: For the purpose of this rule,
(i) "Institutional consumer" means the institutional consumer like Transportation, Airways, Railways, hotels, Hospitals or any other service institutions who by packaged commodities directly from the manufacturer for use by that institution.
(ii) " industrial consumer" means the industrial consumer who buy packaged commodities directly from the manufacturer for use by that industry."

As per Explanation to the above Rule, the "institutional consumer" and the "industrial consumer" have been excluded from the purview of the Standards of Weights and Measures Act. In the present case, the adjudicating authority held that TNCSC was covered under the exclusion clause as they were service institution.
It was found that the Tribunal in the case of PG Electroplast Ltd. (supra) had discussed the identical issue on the question of 'industrial consumer' or 'institutional consumer'. The relevant portions of the said decision were reproduced
"6. We have considered the submissions from both the sides and perused the records. There is no dispute that the color television sets are notified under section 4A of the Central Excise Act, 1944 and accordingly in respect of the sales of CTV sets by a manufacturer, which are other than the sale referred in Rule 2A(b) of the SWM Rules, there would be requirement of declaring the MRP on the packages and assessable value of the goods in such cases would have to be determined under section 4A i.e. MRP minus abatement as notified under the
Notification issued under section 4A. The appellant have paid duty on the CTVs, in question, sold to M/s. ELCOT on the basis of value determined under section 4A i.e. declared MRP minus abatement. The Department's contention is that in respect of the sales to M/s Elcot , the provisions of suction 4A would not be applicable as
M/s. ELCOT are an "Institutional Consumer", as defined in Explanation of Rule 2A (b) of the SWM Rules and, hence, there is no requirement to declare the MRP on the packages of CTVs sold to M/s. ELCOT.
7. In terms of Rule 2A(b) of the SWM Rules, the provision of Chapter II of these
Rules would not apply to the packaged commodities meant for "Industrial Consumer" or "Institutional Consumer". In terms of explanation to this Rule, "Institutional Consumers'" means those consumers who buy packaged commodities directly from manufacturers/packers for service industry like transportation including airways, railways or any other similar service industry and "Industrial Consumers" means those consumers who buy packaged commodities directly from manufacturers/packers for using the same in their industry for production etc. The Department's contention is that M/s. ELCOT, Tamil Nadu, a Govt. of Tamil Nadu Undertaking, engaged in the manufacture of electronic products, who have been roped in by the Govt. of Tamil Nadu for procurement of CTVs and their free distribution on its behalf, are an "Institutional Consumer", as they have provided the services of free distribution of CTV sets to the Govt. of Tamil Nadu. In our view the 'service' referred in the definition of "Institutional Consumer" is the service industry like airlines, railways and other similar services and as such the activity of free distribution of CTVs among poorer section of the population of Tamil Nadu on behalf of the Govt. of Tamil Nadu, cannot be called service industry as it is not a commercial activity. "Industrial Consumers" also, as the CTVs purchased by them were not meant for use in their factories for production. Since M/s. ELCOT are neither institutional consumer nor industrial consumer, in respect of sale of CTVs by the appellant to them, MRP was required to be declared in term of SWM Rules and accordingly, the Provisions of Section 4A would be applicable. The Appellant have paid duty on this basis only i.e. on the value determined under section 4A. In view of this, the impugned order is not sustainable. The same is set aside. The appeal is allowed."

It was evident from the above decision that the Tribunal had clearly held that the M/s. ELCOT procured Colour Television sets for Government of Tamil Nadu for free distribution ofthe CTVs among the poor sections of people of Tamil Nadu on behalf of Govt of Tamil Naducannot be called as a "service industry" as it was not a commercial activity. Similarly, in thepresent case, TNCSC carried out procurement of Mixies, Table Top Wet Grinders, ElectricTable Fans and Electric Rice Cookers for free distribution to the women beneficiaries, who wereholding family cards eligible for drawal of rice on behalf of Tamil Nadu Government. TheTNCSC was an undertaking of the Government of Tamil Nadu similar to M/s. ELCOT. M/s.ELCOT had been entrusted by Govt. of Tamil Nadu for procurement of colour T.Vsets and in the present case, TNCSC has been entrusted to procure Mixes, Table Top WetGrinders, Electric Fans & Electric Rice Cookers. Therefore, the ratio of the above decision ofthe Tribunal in the case of PG Electroplast (supra) clearly applied to this case.
The case laws relied by the Ld. AR were not applicable to the facts of the case and distinguishable. The Hon'ble Supreme Court decision relied upon by Ld. AR in the case of M/s. Jayanti Foods Processing Pvt. Ltd. (supra) in respect of Civil Appeal No.2819 of 2002 related to sale of ice creams in bulk pack of 4.0 litres to Hotel industry under whole sale pack not under retail pack. The Hotel industry sold ice cream in scoops in retail to their customers and the Hon. Supreme Court held that the assessment of ice cream whole sale pack of 4.0 litres should be done under Section 4 and not under Section 4A. Whereas in the present case TNCSC is not service industry and the goods were sold to TNCSC not for their consumption or for retail sale. Therefore the above decision was not applicable to the present case
The Hon.Supreme Court in the same order of M/s.Jayanti Foods Processing Pvt. Ltd. (supra) in respect of Civil Appeal Nos.2150-2151 of 2004 = 2007-TIOL-150-SC-CX and othersat para 31-34 held that merely because the goods were supplied in bulk to DOT, MTNL andBSNL, the goods cannot be assessed under Section 4. The Hon'ble Apex Court held that thenature of sale was not important and what was important was the requirement of printing of MRP onthe packages and also held that telephones were also sold in retail market in the same formand the same package. The relevant paragraphs of the Hon'ble Supreme Court's judgmentin Jayanti Food Processing (P) Ltd. (supra) was reproduced as under:-
32. It is an admitted case that all these telephone manufacturing companies sold the instruments (Push Button Telephones) to Department of Telecommunications (hereinafter referred to as the DoT), Mahanagar Telephone Nigam Limited (hereinafter referred to as the MTNL) and Bharat Sanchar Nigam Limited (hereinafter referred to as the BSNL). The purchaser did not sell these instruments to the general public but instead provided the instruments on rental basis or otherwise to their customers, meaning thereby that there was no further sale of these instruments. The product falls under sub-heading 8517 and is covered under Notification No. 9/2000-C.E. (N.T.), dated 1-3-2000 and subsequently by Notification No. 5/2001, dated 1-3-2001. It was, therefore, an admitted position that from 1-3-2000 Electronic Push Button Telephones manufactured by the assessees were specified goods and were bound to be valued for assessment with reference to the retail price under Section 4A of the Act. It is also an admitted position that on all the telephone pieces sold to DoT, MTNL and BSNL, as the case may be, the assessees had declared the MRP. The assessees got the advantage of the abatement and because of that they were required to pay lesser duty under Section 4A as compared to the duty chargeable under Section 4 of the Act on the basis of contract price. The abatement was 40% on the retail price. It was undoubtedly true that bulk supply was made by the telephone manufacturing assessees to DoT, MTNL and BSNL and perhaps because of that the Department averred that since this was a wholesale transaction, the duty was assessable on the contract price and not on the MRP. Before the Tribunal Revenue relied upon various provisions and more particularly on Rules 2(q), 2(x), 3, 6(1 )( f), etc., of the SWM (PC) Rules. A reference was made to the Board Circular dated 28-2-2002 also. There was a difference of opinion amongst the two Members of the Tribunal in Appeal Nos. E/701/2002 & E/962 of 2002 (Civil Appeal Nos. 2150-51 of 2004 before this Court) = 2007-TIOL-150-SC-CX as to the applicability of Section 4A vis –avis Section 4A of the Act to the transactions. The matter, therefore, was considered by the third Member who came to the conclusion that the only applicable provision would be Section 4A. The Third Member found that the goods were cleared with the MRP having been declared on the package. The third Member of the Tribunal further observed that unless the packages themselves were exempt under the SWM (PC) Rules, the assessment would have to be under Section 4A and that the goods were sold in bulk under contract cannot be the criteria.
33. Learned Counsel Shri Subba Rao, however, reiterated his argument that since the goods were sold in bulk the valuation should be under Section 4 of the Act. We have already explained earlier the scope of Section 4A suggesting that the Section would apply to the package if it is required under SWM Act and the Rules made thereunder to declare the MRP thereon. We are not in a position to accept the arguments of learned Counsel that merely because there is a bulk sale to DoT, MTNL and BSNL, the assessment should be under Section 4 of the Act. We again mention it at the cost of repetition that the nature of sale is not important, what is important is the requirement of printing the MRP on the packages. It was not and indeed cannot be disputed that these telephones are also sold in the retail market in the same form and the same package and that there is a requirement of printing the MRP on each package of the Push Button Telephone. Learned Counsel Shri Subba Rao also did not dispute before us the necessity of printing the MRP on the package of each telephone which is sold in the market. If that is so, the package would be covered under the relevant SWM (PC) Rules. We do not find anything in the SWM (PC) Rules that where a customer purchase a large number of packages, such bulk purchase itself rules out the applicability of the SWM (PC)Rules. Under Rule 2A, as it then stood, it was provided that Chapter II apply to all pre-packaged commodities. Rule 3 thereof provided that the provisions of Chapter apply to the packages intended for retail sale which would mean that the sale would be for consumption by an individual or group of individual or any other consumer. There can be no doubt that the telephone instruments were to be used by the consumers. Therefore, the telephones were sold to these three instrumentalities, there is no escape from the fact that these telephones were meant to be ultimately used by the consumers and it is only with that object that the said telephones were purchased by the three instrumentalities from its manufacturers. Therefore, the sale of the telephone instruments would be covered in the term retail sale. Rule 6 is thereafter very clear which requires every package to make certain declarations including the declaration of the retail sale price on the package. There is also no dispute that the said declaration was indeed made on the package of each piece of telephone. If this be so, then it is obvious that Rule 6 could apply and there will be a requirement under the Rules as provided in Section 4A(1) of the Act for printing the MRP on the package. Shri Subba Rao argued that the transaction between the assessee companies and DoT, MTNL & BSNL did not satisfy the requirement of definition of retail sale as there was no retail sale agency or other instrumentalities involved in the said transaction. We are afraid the specific language of retail sale is not being perceived properly. The retail sale does not have to be only through the retail sale agencies or other instrumentalities. One look at the definition of retail sale, as provided in Rule 2(q) is sufficient to justify this inference. The argument is, therefore, rejected. According to Shri Subba Rao further the package would not be a retail package as contemplated in Rule 2(p) as the DoT, MTNL & BSNL cannot be viewed as an individual or group of individuals. We are afraid again the unamended definition of Rule 2(p) is not read properly. When a retail package containing any commodity is produced, distributed, displayed, delivered or stored for sale for consumption by an individual or group of individuals, it would be a retail package. In this case, admittedly, DoT, MTNL & BSNL provided these instruments, after they have purchased the instruments, to the individual customers, though not by way of a sale but for their use. The package, therefore, undoubtedly be a retail package. It was further suggested, relying on the definition of retail sale price in Rule 2(r) that DoT, MTNL & BSNL are not the ultimate consumers as contemplated in the definition. We are afraid even there the definition is not being read properly as it cannot be said that DoT, MTNL & BSNL are not the ultimate consumer. The purchasers, in this case, undoubtedly, used the telephone instruments for supply to their customers on rental basis or on some other basis. It cannot be, therefore, said that they would be excluded from the term ultimate consumer.......

The Apex Court's decision clearly applied to the facts of the case, wherein the goods were sold by the appellant to TNCSC and there was consideration of sale and the goods were covered under Section 4A of the Central Excise Act. The appellants had rightly cleared the said goods on payment of Central Excise duty as per RSP in terms of Section 4A read with Notification No.49/08.
Respectfully following the Hon. Apex Court's decision and the decision of Tribunal in the case of PG Electroplast Ltd. (supra) they considered the view that the appellants correctly discharged the duty under Section 4A based on RSP basis. Accordingly, they set aside the impugned orders passed by the Adjudicating Authority in respect of both the appellants and allowed the appeals with consequential reliefs, if any. Stay applications were disposed of.

Decision: - appeal allowed

Comment:- the essence of this case is that for the sale transaction to be assessed to duty on retail sale price requires to be sold to ultimate consumer the definition of retail sale has to be looked onto. The transaction between the assessee companies and instrumentalities to be said as retail sale does not have to be only through the retail sale agencies or other instrumentalities.

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PJ/CASE LAW/2014-15/2481

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